Re Sahingoz

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2022 0057

IN THE MATTER OF the Bail Act 1977 (Vic)

and

IN THE MATTER OF an Application for Bail by OMER SAHINGOZ

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JUDGE:	Champion J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2022
DATE OF JUDGMENT:	1 April 2022
CASE MAY BE CITED AS:	Re Sahingoz
MEDIUM NEUTRAL CITATION:	[2022] VSC 191

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CRIMINAL LAW – Application for bail – Applicant charged with drug trafficking, drug possession, possessing a prohibited weapon and bail offences – Strength of prosecution case – Acceptance in residential drug rehabilitation program – Exceptional circumstances not found – Unacceptable risk – Bail refused – Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA, 4E, 5AAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Tovey	Milides Lawyers
For the Respondent	Ms B Moleta	Victoria Police

HIS HONOUR:

Introduction and background

By application filed 4 March 2022, Omer Sahingoz (‘the applicant’) seeks a grant of bail in relation to the following nine charges brought by Constable Shaynie Morphett on 13 December 2021 (‘the Morphett offending’):

(a)Trafficking in drugs of dependence (two charges);
(b)Possessing drugs of dependence (three charges);
(c)Dealing with property suspected to be proceeds of crime (two charges);
(d)Possessing a prohibited weapon; and
(e)Committing an indictable offence while on bail.

The applicant has been on remand since being arrested and charged on 13 December 2021. He has been refused bail twice in the Dandenong Magistrates’ Court, first on 15 December 2021, and more recently on 17 February 2022, both times on the basis that he failed to show exceptional circumstances justifying a grant of bail. The matters are next listed for mention on 12 April 2022 in the Dandenong Magistrates’ Court.

There is one co-accused in this matter, Annie Nguyen. She is charged with two charges of trafficking in a drug of dependence; four charges of possessing a drug of dependence; and a single charge of dealing with property suspected of being proceeds of crime. She was granted bail in the Dandenong Magistrates’ Court on 14 December 2021, subject to various conditions including compliance with the Court Integrated Services Program (‘CISP’). The co-accused has no prior convictions, but has been previously discharged from two matters after completing diversions in 2015 and 2021. The co-accused’s matter is next listed for CISP monitoring on 12 April 2022 in the Dandenong Magistrates’ Court.

The application

The application is supported by the affidavit of Hassan Hamka, solicitor, dated 4 March 2022, attaching a series of exhibits, some of which will be referred to below. The applicant filed a nine page Outline of Submissions, supplementing these with oral submissions on the hearing of the application. The applicant called evidence from Mr Aaron Gilhooley, the Operations Manager of The Cottage, discussed further below.

In response to the application, the respondent filed an affidavit sworn by Nathan Peter Watt, government solicitor from Victoria Police, dated 16 March 2022, also attaching a series of exhibits, including an undated report prepared and authored by Sergeant Michael Hughes. The respondent relied on this filed written material, as well as oral submissions on the application.

Part of the evidence placed before the Court on the application were two video files being recorded product from body-worn cameras (‘BWCs’) which were operated when a search of the applicant and his co-accused occurred when items were located and seized inside, and in the vicinity of the motor vehicle described below. The Court was invited to review aspects of this material, and has done as requested.

The parties agree that the exceptional circumstances test applies to this application, and accordingly, it proceeded on that basis, without objection.

Other matters

At the time of the alleged Morphett offending, the applicant was on bail in three separate matters, two in Victoria and one in Western Australia. He was on summons in a further matter. The charges in each of the other matters are as follows.

Informant Huisman

On 29 December 2020, the applicant was arrested and charged by Constable Tyler Huisman with the following offences alleged to have occurred on 13 December 2020:

(a)Attempting to traffick a drug of dependence (two charges);
(b)Possessing a drug of dependence (two charges); and
(c)Introducing contraband into a prison.

The applicant was granted police bail on 29 December 2020. This matter is next listed for mention on 9 June 2022 in the Geelong Magistrates’ Court.

Informant Stanton

On 12 January 2021, the applicant was arrested in Western Australia and subsequently charged by Senior Constable Lloyd Stanton with the following offences alleged to have occurred on 8 January 2021:

(a)Possessing a trafficable quantity of a prohibited drug with intent to sell or supply (two charges);
(b)Possessing a controlled or prescription drug (three charges); and
(c)Failing to comply with the requirements of a police officer.

The applicant was remanded in custody at the time of his arrest on 12 January 2022, and remained there for six months before being granted bail in the Perth Magistrates’ Court on 9 July 2021, subject to various conditions, including a $150,000 surety provided by the applicant’s mother. It is understood that this matter is next listed on 13 May 2022 in the Perth Magistrates’ Court, although the nature of the next listing appears not known.

Informant Simons

On 24 June 2021, the applicant was arrested and charged by Leading Senior Constable Luke Simons with the following offences alleged to have occurred on 22 October and 25 November 2020:

(a)       Trafficking a drug of dependence (four charges);
(b)      Introducing contraband into a prison;
(c)       Operating a remotely piloted aircraft above a prison;
(d)      Operating an unmanned aircraft outside of line of sight;
(e)       Operating an unmanned aircraft at night; and
(f)       Operating an unmanned aircraft above 400 feet.

The applicant was remanded in custody at the time of his arrest on 24 June 2021, before being granted bail in the Geelong Magistrates’ Court on 30 June 2021, subject to various conditions. This matter is next listed for mention on 9 June 2022 in the Geelong Magistrates’ Court.

Informant May

On 21 September 2021, the applicant was charged on summons by Acting Sergeant Shane May with the following offences alleged to have occurred on 28 August 2021:

(a) Driving while his authorisation was suspended; and
(b) Exceeding the speed limit.

This matter finalised on 1 March 2022, resulting in an aggregate $900 fine.

The current alleged offending
Informant Morphett

On 13 December 2021 police observed a male sitting in a black Honda motor car in Springvale. He was alone and appeared to be leaning over inside the car. Checks indicated the user of the car was on bail for drug offences. Police turned their car around to follow the applicant’s car as it drove away at speed. By then the co-accused was sitting in the passenger seat.

Police followed and stopped the motor vehicle as it attempted a U-turn at the end of a cul-de-sac. Police directed the applicant to turn off the engine, exit the car and produce his driver’s licence. The co-accused was seen reaching down repeatedly near her right leg, appearing to be attempting to conceal items.

Police observed a $50 note hanging from the centre console near where the co-accused appeared to be concealing items, so they directed her to exit the car with her handbag. She was searched and a zip lock bag containing eight and a half white pills, which she stated were Xanax, fell from her underwear. In addition, $1,840 in cash, her identification, an iPhone and two zip lock bags containing methylamphetamine were found in her bag.

The applicant was also searched but nothing was located on his person.

Police searched the motor vehicle and located:

(a)a total of $30,400 in cash, concealed in various sections of the car;
(b)one and a quarter blue tablets in a tin, located within a ‘go-pro’ case in the back passenger side of the car. After this was located, the applicant is alleged to have said words to the effect of ‘that’s mine’, which were captured on body worn camera;
(c)a snap lock bag with multiple smaller bags, containing a total of 42 grams of heroin, and ten Endone tablets, located under the dashboard on the driver’s side of the car;
(d)a ‘tick book’ listing amounts believed to be linked to drug transactions, located in the boot of the car;
(e)a driver’s licence and several cards in the names of the applicant and other third parties, located in the ‘go-pro’ case in the back passenger side of the car; and
(f)a set of knuckle dusters and bolt cutters.

The applicant and co-accused were arrested and conveyed to Springvale Police Station, where they both made no-comment interviews.

Outstanding matters
Informant Simons matter

On 22 October 2020, after a drone was detected entering the airspace above Barwon Prison, prison staff located a package inside prison grounds containing approximately 48 grams of tobacco, 10 small clear bags containing a total of 15 grams of methylamphetamine, eight small bags containing 29 grams of buprenorphine strips, a pocket knife, three screwdrivers, an empty micro SD card, USB holder and a GPS device.

Police investigations revealed that the GPS device was registered to the email address ‘[email protected]’; that a subscription to the tracker application on the GPS device was paid for using the applicant’s Visa credit card; and that the drone had previously been flown several times near the applicant’s home in Skye.

In addition, the same drone had been detected flying in airspace above the Melbourne Immigration Transit Accommodation (‘MITA’) Centre on four occasions in early November, although searches of the vicinity did not locate any packages at that time. However, on 17 December 2020, a contractor at MITA located a package on a roof which contained various items, including 40 grams of methylamphetamine, a vial of testosterone, a syringe plunger and needles. CCTV indicated it had landed on the roof on 25 November 2020.

On 12 January 2021 the applicant was arrested at Perth Airport in relation to the Stanton matter (detailed below). The same drone from the Barwon Prison and MITA Centre incidents was located in the applicant’s luggage and seized, together with the applicant’s phone. Analysis of the applicant’s phone revealed it was in the vicinity of the MITA Centre on 25 November 2020.

On 24 June 2021 the applicant was charged and remanded in this matter, before subsequently being granted bail in Geelong Magistrates’ Court on 30 June 2021.[1]
[1]See Affidavit in response, exhibit NPW-1, 24-25, for a copy of the extract granting bail dated 30 June 2021.

Informant Huisman matter

On 13 December 2020 the applicant entered the Barwon Prison and when visiting an inmate was observed on CCTV taking a blue balloon from his mouth and concealing it under his armpit. Prison officers removed the applicant to a holding area and searched him, locating and seizing the balloon. A second balloon was then located during a search of the holding area. The applicant allegedly told prison officers the balloons contained ‘speed’. It is alleged that the drug was methylamphetamine.

Police attended and the applicant was arrested, charged and interviewed. He made no comment during the interview and was released the same day.

As above, on 29 December 2020, the applicant was arrested, charged and released on police bail.

Informant Stanton (Western Australia)

On 7 January 2021 the applicant flew into Perth and it is alleged that on the following day he used a drone to drop four packages intended for detainees inside the Yongah Hill Immigration Centre at Northam in Western Australia, which packages contained 56.73 grams of methylamphetamine and 6.53 grams of cannabis.

On 12 January 2021 the applicant was arrested at Perth Airport, charged and remanded in custody. A drone was located in his luggage. He was later granted bail in the Perth Magistrates’ Court on 9 July 2021, subject to a $150,000 surety provided by his mother.

The applicable legislation

The applicant is accused of committing a schedule 2 offence within the meaning of the Bail Act 1977 (‘the Act’), whilst on bail for a schedule 2 offence.[2] Therefore bail must be refused unless he satisfies the Court that exceptional circumstances exist that justify the grant of bail.[3] In determining whether exceptional circumstances exist, the Court must have regard to the relevant surrounding circumstances, including those in s 3AAA(1) of the Act.[4]
[2]Namely, trafficking in a drug of dependence, on both occasions. See the Act, sch 2, item 24(b).
[3]The Act, ss 4AA(2)(c)(i), 4A(1)-(2).
[4]Ibid s 4A(3).

If satisfied that exceptional circumstances exist that justify the grant of bail, bail must still be refused if the respondent satisfies the Court there is a risk of a kind set out in s 4E(1)(a) of the Act and that such risk is unacceptable.[5] In considering this, the Court must take into account the ‘surrounding circumstances’ and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[6]
[5]Ibid ss 4D(1)(a) and 4E.
[6]Ibid s 4E(3).

Finally, when interpreting and applying the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[7]
[7]Ibid s 1B(2).

Intervention orders and family violence risk

Section 5AAAA(1) of the Act requires the Court to inquire with the prosecutor whether there are any family violence related intervention orders or notices in force against the applicant.

The applicant is the respondent in an active final family violence intervention order (‘FVIO’) issued at Frankston Magistrates’ Court on 17 December 2020, listing his ex-wife, Kim Sahingoz, and son, Atilla Sahingoz, as the affected family members (‘AFMs’). The order has limited conditions, including that the applicant not commit family violence against the AFMs, damage their property, or cause anyone else to, and expires on 17 December 2022. This order was made following an incident where Ms Sahingoz confronted the applicant in relation to a bag of drugs, allegedly methylamphetamine, and he became abusive, wrapped his hands around her throat and threatened to kill her, before being interrupted by their son. Ms Sahingoz refused to provide a statement to police and no charges were issued.

In the context of the charges before this Court this aspect of the applicant’s background appears to have limited relevance to the outcome of the current application.

The applicant’s personal circumstances

The applicant is 40 years old. He left school in year 10 and was employed primarily in the construction industry, most recently as a foreman drilling underground car parks. In November 2020, he lost his job and separated from his wife, with whom he has a three year old son.

Criminal history

The applicant has an extensive criminal history spanning the period between 2001 and 2014. He has numerous past convictions for drugs, weapons and dishonesty related offending. Relevantly, his prior convictions include:

(a)18 July 2014: the applicant was convicted of false imprisonment, prohibited person possessing a firearm, possessing a drug of dependence, dealing with property suspected to be proceeds of crime and possessing cartridge ammunition without a permit, following an incident where he and two co-accused demanded money from a complainant and detained him against his will. The applicant was sentenced in the County Court to two years and six months’ imprisonment, with a non-parole period of 14 months.
(b)8 December 2011: the applicant was convicted of trafficking amphetamine and possessing unregistered firearms and sentenced to an aggregate three years’ imprisonment with a non-parole period of 16 months.
(c)19 May 2004: the applicant was convicted of trafficking and possessing drugs of dependence, possessing weapons, failing to answer bail (two counts) and a range of dishonesty offences. He was sentenced to an aggregate term of 10 months’ imprisonment, which was ordered to be served cumulatively on an existing 12-month sentence for theft of a motor vehicle (two counts) and dealing with proceeds of crime. An overall non-parole period of 12 months was fixed. On 17 August 2004, following an appeal in the County Court, the applicant was re-sentenced to an aggregate term of 10 months’ imprisonment, with four months’ to be served concurrently on the earlier sentence, and the entirety of the sentence suspended for two years.

Aside from the allegations already listed above, it appears the applicant has had no recorded court outcomes since 2014.

The applicant’s submissions

The applicant relies on the following matters, in combination, in support of his application for bail. He submits that when all the matters are assessed in combination, he has demonstrated exceptional circumstances exist, and that any alleged risks can be brought within the bounds of acceptability by the imposition of strict conditions.

Strength of the prosecution case

The applicant proposes to contest the charges and submits there are a number of substantial triable issues in the prosecution case including, whether the prosecution can rebut an alternative hypothesis that the applicant collected the co-accused from her home and that she was the one who attempted to hide drugs and cash in the car when they were stopped by police, and further that she was in possession of the drugs and cash located in places throughout the vehicle. The applicant argues this hypothesis is supported by evidence, including from conclusions reached from viewing the recorded BWC material, noting that the police summary states that he co-accused was seen moving items around whilst the applicant was speaking to police outside of the car, and that almost all of the relevant items were found in the area occupied by the co-accused. Further, items were also found concealed on her body. It is pointed out that the heroin located in the drivers foot well and dash area of the vehicle was clearly accessible from the passenger seat. It is also noted that police did not make any observations of the vehicle prior to when they first came into contact with it, and that accordingly there were no direct observations as to what was going on in the vehicle.

Further, it is submitted that there is a genuine issue in respect of the lawfulness of the search of the vehicle, especially in circumstances where the prosecution case is a circumstantial one.

Delay and eventual sentence

As the applicant is contesting the charges, forensic analysis of the drugs and related material, and analysis of phones, is required. The applicant submits this cannot occur until the matter is listed for contested hearing, with that hearing unlikely to be listed before late 2022, resulting in an anticipated overall delay of approximately 12 months since the applicant’s arrest, and remand in custody. There is a special mention of the matter on 12 April 2022, which appears likely to be the occasion when the matter will be listed for a contested hearing later in the year. It is noted that the applicant has been in custody since December 2021.

It is submitted that the quantum of drugs involved in the case, whilst not being a small amount, is not so substantial that it is likely to result in a sentence passed which would exceed the applicant’s likely time spent on remand especially as there is a “highly arguable defence” available. Thus it is submitted that this is plainly a case where the time spent on remand may exceed the eventual sentence to be imposed, and this is then relevant to the assessment of whether the exceptional circumstances test is satisfied.

The impact of COVID-19

The applicant points to the impact of the COVID-19 pandemic as being relevant in two ways, namely the severe interruption to the business of all Victorian courts, and the onerous conditions under which he would be required to serve the remainder of his remand, should he not receive a grant of bail. The applicant points particularly to restrictions associated with in-person visits, education programs and recreational activities normally available to prisoners.

Criminal history

The applicant concedes he has a relevant criminal history, however submits there is a ‘considerable gap’ in his proven offending, as his last conviction was eight years ago, with his last drug-related offending being ten years prior to the current allegations. He further submits this demonstrates his capacity to live in the community productively and not offend.

Further, he submits that his prior criminal history is demonstrative of and connected with, his issues with substance abuse.

Bail history

The applicant notes he was remanded in custody on 13 December 2021, at that time being subject to three sets of bail for drug-related offences. The applicant concedes that he has three prior convictions for failing to answer bail, however notes that the most recent was in 2008. Further, only one of the applicant’s current matters is alleged to have been committed while he was on bail, and it is not the case that each of the three pending matters occurred after separate grants of respective bail.

Furthermore, he points out that none of the grants of bail involved conditions requiring him to undertake treatment for his addiction issues.

Family support, ties to the jurisdiction and carer responsibilities

The applicant submits that he has strong ties to Melbourne as he owns a home and shares custody of his son, who resides with his ex-wife in Melbourne. He submits that he maintains a close bond with his son, sees him regularly, and that their separation whilst he has been remanded in custody has been an additional burden to him.

The applicant further submits that his remand has caused great stress to his mother, who has significant physical and mental health concerns, and he wishes to be in the community to care for her. However, it is accepted that the applicant will be unable to care for his son or mother should he be resident at The Cottage, as proposed.

The applicant notes further support by his family in that they are providing funding for his treatment at The Cottage, at least until the end of the program.

Availability of treatment and support services

In circumstances where there is likely to be a significant delay, and the risk of a period of remand exceeding an eventual sentence, it is submitted there is a much more desirable and appropriate alternative, which would allow the applicant to deal with the drug issues that have plagued his life since late 2020. Thus, the applicant argues that the availability of a program that The Cottage can provide amounts to a highly relevant factor in determining whether exceptional circumstances are made out. The applicant referred to observations in cases such as Haddara,[8] Robinson,[9] Price,[10] and Khoshaba.[11]
[8]Bail application by Fadi Haddara [2014] VSC 284.
[9]Robinson v The Queen [2015] VSCA 161.
[10]Re application for bail by Price [2021] VSC 31.
[11]Re Knoshaba [2022] VSC 54.

The applicant proposes to undergo an intensive residential rehabilitation program at The Cottage in Shepparton, for a minimum of 16 weeks, to address his past struggles with drug use. He submits that the availability of intensive, residential drug and alcohol rehabilitation through The Cottage is at the heart of his present application for bail, such that it is highly relevant to both the assessment of exceptional circumstances and whether any attendant risks can be made acceptable.

The Operations Manager, Aaron Gilhooley, confirmed in a letter dated 22 March 2022 that the applicant has been assessed as suitable for this program and that there is a bed available for him from 23 March 2022. The applicant called viva voce evidence from Mr Gilhooley and he expanded on the reports written about the applicant, and tendered on the hearing. He explained some aspects of The Cottage program, and various security safeguards presently in place, confirming that the facility has been providing programs since June 2017. He confirmed that he was aware of the applicant’s prior criminal history, and the broad nature of the allegations he currently faces, but confirmed that he assessed the applicant as suitable for the program. He confirmed that the applicant had self-reported his drug-related history, involving a lengthy period of drug use from the early 2000’s until his most recent sentence in 2014. The applicant reported that he had stayed “clean” for approximately six years following his sentence in 2014, and that things started to break down with the start of COVID, his loss of employment, and the breakdown of his relationship, thus leading to him turning back to drugs, involving daily use of methamphetamine, Xanax, and increased drinking. By late 2021, the applicant reported that he was using drugs again after arriving back in Victoria from his release from custody in Western Australia.

Mr Gilhooley opined that the applicant would benefit from the type of intensive treatment offered at The Cottage. He agreed that there had been no formal testing of the applicant and that it was based on his assessment of the applicant’s self-reporting, and that he had not independently verified any of the information provided during the assessment. Further, he expressed the view that the matters that he had been told about, including aspects of the applicant’s prior history, and alleged breaching of stringent conditions for his previous bail, did not raise any concerns for him as they were, “all drug-related”.

Unacceptable risk

The applicant is aware of a series of proposed bail conditions and agrees to be bound by them. He submits that his participation in residential rehabilitation to be provided by The Cottage, combined with an undertaking by staff to immediately report breaches of strict bail conditions to the informant, would ameliorate the alleged risk.

The applicant points to the period where he was not convicted of any offending, as a demonstration that he is capable of pulling himself out of his addiction and reintegrating himself into the community.

Bail conditions are proposed, including for the applicant to reside at The Cottage, participate in the program at that facility, and comply with staff directions including drug testing, not to possess a mobile phone without permission or proper registration, to provide details of this phone to the informant, surrender any passports, not leave Victoria or attend international departure points, and not to contact witnesses.

Further, it is submitted that at the end of the 16 week program at The Cottage, it would be necessary for the applicant to return to this court to seek a variation of bail due to the likelihood his residential circumstances would need to change. In that way, it is submitted that the Court maintains some supervision of the applicant at that time.

The respondent’s submissions

The respondent opposes bail on the basis that the applicant has not demonstrated exceptional circumstances that justify a grant of bail, and on the basis that he poses an unacceptable risk of endangering the safety or welfare of any person, committing an offence whilst on bail, interfering with a witness or otherwise obstructing the course of justice, and failing to surrender into custody in accordance with the conditions of bail.

In response to the applicant’s submissions, the respondent refers to a report prepared by the informant’s corroborator for the purposes of this application.

Strength of the prosecution case

The respondent submits that the body worn camera footage and observation of the corroborator at the scene conflicts with the applicant’s assertion that the co-accused was responsible for the items found in his car during the search. It is noted that, while some cash and drugs were found in the possession or vicinity of the co-accused, the majority of drugs were found secreted under the dashboard on the driver’s side of the vehicle. The respondent submits that the footage shows the co-accused sitting in the passenger seat drinking a can of Coca-Cola, and not reaching over to the driver’s side of the car. Further, the corroborating officer submits that, based on their observations regarding the co-accused’s size, it would have been ‘impossible’ for her to reach far enough from her seat to have been able to conceal the drugs in the location police found them, namely up and under the dash on the driver’s side of the car.

Delay

The respondent submits that this is not a case where there will be an inordinate delay due to the fact that the matter will stay within the jurisdiction of the Magistrates Court. There is a tentative date for a summary contest for both accused on 23 and 24 June 2022. Nevertheless it was conceded there is a risk that forensic analysis of various items may not be ready by June, but despite that there is capacity for the contest in this matter to be heard in 2022. The respondent nevertheless conceded that there is a realistic possibility that the applicant may spend 12 months in custody awaiting his trial. The respondent pointed to all of the matters that the applicant is facing trial on in Victoria, and that any time served on remand would be attributable to any of the matters that he may be convicted of. The respondent pointed out that the other matters should also be regarded as being serious. In short, it was submitted that there is not an overwhelming possibility that the applicants time on remand would outweigh penalties that may be imposed on the matters he faces, particularly given the applicant’s prior convictions.

Bail history

The respondent disputes the applicant’s submission that the pending matters were not committed following separate grants of bail, submitting that, on at least two occasions (the present remand offending included), the applicant was granted bail and subsequently reoffended.

Ties to the jurisdiction

The respondent submits that the applicant’s ties to the community were in existence at the time of the alleged offending, and that little weight should be given to these factors without further evidence regarding how these circumstances may affect risk of reoffending.

Other relevant matters

The author of the bail report noted above points out that the applicant’s mother, sister and girlfriend are alleged to have gone to the co-accused’s home on 9 January 2022, and spoken with the co-accused’s mother, threatening to break into the house and kill the co-accused and her mother if the co-accused did not take responsibility for the alleged offending. The three women have not been charged with any offences resulting from this visit, and have denied the allegations, although acknowledging that they attended the house hoping to speak to the co-accused. Final personal safety intervention orders (‘PSIOs’) protecting the co-accused and her mother are now in place until 26 January 2023, where the named respondent is Stacey Ayers, who is understood to be the applicant’s girlfriend. Interim PSIOs are also in place protecting the co-accused and her mother, where the named respondent is Canan Sahingoz, who is understood to be the applicant’s sister. The applicant’s mother is also said to be the respondent to a third PSIO, although a copy of this order has not been provided in the material.

Unacceptable risk
Endangering the safety or welfare of any person

The respondent submits that the accused is an unacceptable risk of committing further offences while on bail, interfering with witnesses, and failing to appear at court when required.

By reference to the attendance of the applicant’s associates at the co-accused’s house, the respondent submits that the applicant poses a risk to the co-accused and her mother. Further, the respondent refers to the applicant’s current and pending charges relating to drug trafficking, and relies on this to submit that the applicant poses a risk to the safety and welfare of the community generally.

Committing an offence

The respondent submits that the applicant has demonstrated a willingness to offend whilst on bail, as he has a history of non-compliance with court orders and bail-related offending. Further, the current allegations occurred whilst he was subject to strict bail conditions relating to three sets of bail, including a significant surety provided by his mother, reporting, a curfew and surrendering his passport, which failed to deter him from further offending.

Interfering with a witness or otherwise obstructing the course of justice

It is submitted there is a risk the applicant or his associates may contact the co-accused and pressure her to take responsibility for the alleged offending.

Failing to surrender into custody in accordance with the conditions of bail

The applicant has three prior convictions for failing to answer bail, and this is relied upon to submit that the applicant may leave the jurisdiction, which is said to be further supported by his pending matter in Western Australia relating to offending alleged to have occurred whilst on bail in Victoria.

Analysis and conclusions

It is not in dispute that the exceptional circumstances test applies to this application and that to be granted bail the applicant must satisfy this test. The burden of establishing exceptional circumstances remains on the applicant. The burden of establishing the applicant is an unacceptable risk lies on the respondent.

Exceptional circumstances

In making an assessment of whether the applicant has satisfied the requirements of the exceptional circumstances test I have had regard to the relevant provisions of the Act as have been noted above. It is well understood that the test can be satisfied by a combination of factors, so that whilst each of the relevant factors might individually be regarded as ordinary and not individually exceptional, when viewed together, may result in the test being satisfied. I have considered and applied the observations as expressed in Roberts v The Queen,[12] referred to by Lasry J in Re Strachan.[13] His Honour observed:
[12][2021] VSCA 28, at [9].
[13][2021] VSC 538, at [28].

The Act does not define what is meant by ‘exceptional circumstances’. However, its meaning has been the subject of much judicial consideration, and the established principles have previously been summarised by me and other judges of this Court to the following effect:

a) The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.

b) Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.

c) Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[14]

[14]Ibid at para [27].

In determining this application I have applied the test as set out by Lasry J, as above.

As to strength of the prosecution case, it was accepted that on this application the court must take the prosecution evidence at its highest. However, as pointed out in argument, that should not mean artificially inflating evidence capable of proving the prosecution case. It was submitted by the applicant that there are ‘significant and substantial issues’ to be tried in this matter.

It is not the role of this Court to try the case, these being matters that will be decided by a Magistrate at a later contested hearing. The role of this Court is to make some broad assessment of the strength and weaknesses of the prosecution case insofar as the available evidence permits such an assessment to be made. In this case I observe there is no version of events put forward by the applicant that might assist in shedding some light on the allegations from his point of view. At the same time I must remain mindful not to reverse the burden of proof. I have thus disregarded this aspect and not taken it into account against the interests of the applicant. I have however taken into account the submissions made on the applicant’s behalf that there are ‘significant and substantial issues’ to be tried, and have relied on such a submission being made responsibly, as it is required to be. As I have remarked previously, such a submission often made in the form that ‘triable issues’ exist, is made frequently in bail applications. Courts to which such submissions are made must rely on them having been made after careful consideration of the relevant evidence, and after taking instructions. This is especially so when a court considering the question of bail is not in a position to examine the evidence, or come to conclusions, as if it were finally determining the issues under consideration. In this sense, the Court accepts that there are triable issues in the applicant’s case.

With the foregoing in mind, the evidence reveals that the applicant was driving a motor vehicle in which a number of incriminating pieces of evidence were located. It is evident that some of these pieces of evidence were found in various locations in the motorcar, including in the specific area of where the co-accused was sitting, and also in her physical possession. Furthermore, a large amount of money was located in the car, as well as a ‘tick-book’, alleged to represent recorded evidence of instances of trafficking drugs. The above noted, a significant amount of drugs were alleged to have been located in a secreted position, in the area around the steering wheel of the motorcar. Furthermore, it is alleged that the applicant drove the motor vehicle in a way that suggested he was attempting to evade police interest.

As above, it is not for this Court to try the issues between the prosecution and defence, but it is simply enough to observe that the prosecution case cannot be regarded as weak in respect of the Morphett matters, which appeared to be the main focus of the dispute in this application.

As to the issue of delay, it is accepted by the applicant that the delay expected to occur before the applicant’s charges are finally determined in the Magistrate’s Court will not be to the same extraordinary level presently experienced in the County Court as a result of the backlog of cases caused by the COVID-19 pandemic. Rather, it is submitted, the delay in this case will be caused by necessary forensic analysis of items that police located in the applicant’s motor vehicle. Thus, the present case is not so much related to the availability of court time, but rather that the outstanding forensic testing of evidence is the aspect standing in the way of an early listing.

Thus, it is submitted that in a case where it is put forward that the applicant has a live defence, there is a risk that the applicant’s time on remand might well exceed any sentence imposed and this therefore becomes an overwhelming factor in the assessment of exceptional circumstances. It was submitted that as the allegation involves the trafficking and possession of 42 g of heroin, even taking into account the applicant’s prior convictions, it would be hard to see a sentence being imposed in excess of the expected delay before the matters are finally resolved.

The applicant has been in custody since his arrest on 13 December 2021, with the matters next listed for mention on 12 April 2022. From this date onwards, it is unclear exactly how long he will remain in custody should there not be a grant of bail. The applicant submits it is unlikely that the matters will be resolved before late 2022, meaning that the applicant might be expected to experience a remand period of up to 12 months by that time. On the other hand, the respondent submits that the matter will remain within the jurisdiction of the Magistrate’s Court, and that such a delay would not be regarded as inordinate, even though the applicant may eventually spend approximately 12 months on remand before his matters are resolved.

The allegations against the applicant concern alleged trafficking of more than one type of drug, the possession of the drug endone, the possession of a very significant amount of cash, alleged to be proceeds of crime, and the commission of offences while on bail.

Accepting that there may be triable issues, and even that the applicant may have a viable defence to the charges brought by the informant Morphett, the applicant also faces serious charges, particularly relating to allegations regarding the introduction of contraband into two Victorian prisons, both allegations concerning the trafficking and attempted trafficking of drugs of dependence. As well, there is an allegation that he embarked on similar conduct in respect of a detention facility in Western Australia. Putting aside any sentence that may be imposed by a West Australian court, in my opinion it is quite open to conclude that the sentencing outcomes in the applicant’s Victorian matters may well exceed the period of remand custody that he currently faces. I also add I consider that apart from the Morphett matters, the further allegations the applicant faces, as discussed above, amount to surrounding circumstances that must be taken into account in the assessment of whether the applicant represents an unacceptable risk as defined by the Act.

For the sake of completeness, it should be noted that there is a co-offender in respect of the Morphett matters. She received a grant of bail from the Magistrate’s Court. Although the issue of parity of bail was not specifically raised in the present application, I have had regard to this circumstance. However, in my opinion the circumstances of the co-accused’s charges, and her background, are quite different to that of the applicant. Accordingly, I do not consider that the question of parity of bail is a matter that requires further consideration. I also add that I have placed no weight adversely to the applicant’s interests on the visit by the three women to the co-accused, but simply note that it is curious why they would visit her in the first place.

I also note that on examination, the applicant’s prior convictions, albeit quite extensive, do demonstrate there has been a considerable gap in court outcomes from 2014 until the present. I have taken this factor into account.

Furthermore I have taken into account the evidence that the applicant has been accepted for a 16 week program at The Cottage. I acknowledge the evidence given by Mr Gilhooley about the acceptance of the applicant as suitable for the program. I also take into account that should the program be completed in 16 weeks, on the basis that the applicant asserts a delay in the resolution of proceedings at some point late in 2022, that there is an appreciable risk there will be a significant gap between the conclusion of that program, and when the applicant’s matters may be resolved.

I take into account all the other matters put forward in support of the applicant’s argument that he has met the exceptional circumstances test. However, having balanced all of the matters raised on his behalf, I am not satisfied that he has satisfied this test. In my opinion, when considering the number and seriousness of the Morphett charges faced by the applicant in Victoria, there is a strong possibility that he will receive a significant sentence of imprisonment when these matters are resolved. Taking into account the anticipated delay, and all other factors, I am not satisfied that he has established that the case is one that is taken out of what otherwise would be regarded as “the normal”.

Unacceptable risk

Given the strong submissions that were put on behalf of the applicant in respect of the exceptional circumstances test, and given my conclusion is that the test has not been met, I will nevertheless make some remarks about the question of unacceptable risk. Had the applicant satisfied me that he had met the exceptional circumstances test, I would have refused to grant of bail on the basis that the respondent has satisfied me the applicant represents an unacceptable risk, as defined by the Act.

The respondent submitted that the applicant has demonstrated a willingness to offend whilst on bail, as he has a history of non-compliance with court orders and bail-related offending. Further, the current allegations occurred whilst he was subject to strict bail conditions relating to three sets of bail, including a significant surety provided by his mother, reporting, a curfew and surrendering his passport, which failed to deter him from further offending. All in all, the applicant is alleged to have been engaged in persistent drug-related offending in Victoria in recent years.

In the assessment of risk, the respondent pointed specifically to the matters alleged to have occurred in Western Australia, on which the applicant was subject to stringent bail conditions, including a surety paid for by his mother, when it is alleged the Morphett matters occurred in Victoria. It was argued that these conditions appeared not to have deterred the applicant from offending in the way alleged.

It is to be acknowledged that any grant of bail will be attended by risk, but the question is whether the risk could have been made acceptable by the imposition of conditions. It was submitted that where the applicant is required to engage in a comprehensive treatment regime to treat his drug dependency, the chances of the applicant re-offending are made acceptable.

In my opinion, given the chronology of alleged offences by the applicant, and his apparent willingness to previously defy court orders, and to commit offences whilst on bail, the applicant represents an unacceptable risk of continuing to offend in the event he is granted bail. It appears to me he has demonstrated little regard for the orders of courts both in Victoria, and in Western Australia.

In the assessment of unacceptable risk I have disregarded the allegation made that the applicant represents, directly or indirectly, a risk to the safety of the co-accused. I do not regard the evidence to be sufficient to persuade me that there is an unacceptable risk in regard to this person.

As I am required to do, I have also taken into account the surrounding circumstances in the assessment of whether the applicant amounts to an unacceptable risk, as defined.

Accordingly, taking into account all the relevant circumstances, the application for bail is refused.

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Citations

Re Sahingoz [2022] VSC 191

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Bail application by Fadi Haddara [2014] VSC 284

Robinson v The Queen [2015] VSCA 161

Re application for bail by Price [2021] VSC 31

[2022] VSC 191

1 April 2022